The droit evolved by a group is the droit of that group. The droit evolved by a state-group (we agree that there is no state-group yet, the state is evolving, the droit is evolving, there is only an approximate state, an approximately genuine droit) is the droit of the state. The contribution of the new psychology is that le droit comes from relation and is always in relation. The warning of the new psychology to the advocates of vocational representation is that the droit (either as law or right)113 evolved by men of one occupation only will represent too little intermingling to express the “community” truth. We don’t want doctors’ ethics and lawyers’ ethics, and so on through the various groups. That is just the trouble at present. Employers and employees meet in conference. Watch those conferences. The difference of interest is not always the whole difficulty; there is also the difference of standard. Capitalist ethics and workman ethics are often opposed. We must accept le droit as a social product, as a group product, but we must have groups which will unify interests and standards. Law and politics can be founded on nothing but vital modes of association.
Mr. Roscoe Pound’s exposition of modern law is just here a great help to political theory. The essential, the vital part of his teaching, is, not his theory of law based on interests, not his emphasis upon relation, but his bringing together of these two ideas. This takes us out of the vague, nebulous region of much of the older legal and political theory, and shows us the actual method of living our daily lives. All that he says of relation implies that we must seek and bring into use those modes of association which will reveal true interests, actual interests, yet not particularist interests but the interests discovered through group relations—employer and employed, master and servant, landlord and tenant, etc. But, and this is of great importance, these groups must be made into genuine groups. If law is to be a group-product, we must see that our groups are real groups, we must find the true principle of association. For this we need, as I must continually repeat, the study of group psychology. “Life,” “man,” “society,” are coming to have little meaning for us: it is your life and my life with which we are concerned, not “man” but the men we see around us, not “society” but the many societies in which we pass our lives. “Social” values? We want individual values, but individual values discovered through group relations.
To sum up this point: (1) law should be a group-product, (2) we should therefore have genuine groups, (3) political method must be such that the “law” of the group can become embodied in our legislation.
M. Duguit’s disregarding of the laws of that intermingling which is the basis of his droit objectif leads to a partial understanding only of the vote. Voting is for him still in a way a particularist matter. To be sure he calls it a function and that marks a certain advance. Moreover he wishes us to consider the vote an “objective” power, an “objective” duty, not a “subjective” right. This is an alluring theory in a pragmatic age. And if you see it leading to syndicalism which you have already accepted beforehand, it is all the more alluring! But to call the vote a function is only half the story; as long as it is a particularist vote, it does not help us much to have it rest on function, or rather, it goes just half the way. It must rest on the intermingling of all my functions, it must rest on the intermingling of all my functions with all the functions of all the others; it must rest indeed on social solidarity, but a social solidarity in which every man interpenetrating with every other is thereby approaching a whole of which he is the whole at one point.
Duguit, full of Rousseau, does not think it possible to have a collective sovereignty without everyone having an equal share of this collective sovereignty, and he most strenuously opposes le suffrage universel égalitaire. But le suffrage universel égalitaire staring all the obvious inequalities of man in the face, Rousseau’s divided sovereignty based on an indivisible sovereignty—all these things no longer trouble you when you see the vote as the expression at one point of some approximate whole produced by the intermingling of men.
True sovereignty and true functionalism are not opposed; the vote resting on “subjective” right and the vote resting on “objective” power are not opposed, but the particularist vote and the genuinely individual vote are opposed. Any doctrine which contains a trace of particularism in any form cannot gain our allegiance.
Again Duguit’s ignoring of the psychology of the social process leads him to the separation of governors and governed. This separation is for him the essential fact of the state. Sovereignty is with those individuals who can impose their will upon others. He says no one can give orders to himself, but as a matter of fact no one can really give orders to anyone but himself.114 Here Duguit confuses present facts and future possibilities. Let us be the state, let us be sovereign—over ourselves. As the problem in the life of each one of
